Artificial intelligence as producer and consumer of copyright works: evaluating the consequences of algorithmic creativity

Abstract

In copyright theory, property rights are justified in large part by, e.g., the Lockean argument that the human has laboured to create the work; or in Kantian terms, by emphasising that the work arose from the personality of the human author. 19 Such theories do not fit neatly with a non-human author.Thus, as machines have learned to mimic human creativity, the copyright world has accordingly entered into AI-driven uncharted territory.We aim here to navigate through this territory, providing a road-map of what the legal repercussions of AI are, and guidance on what routes the law should take in the future. 20 Given the wide-ranging nature of the legal and policy issues raised in this article, we take into account the laws of several different jurisdictions, especially the US, the UK and the European Union (EU).Is an AI-created work protected by copyright?Should it be?Who would be viewed as the author?Who should own such a work?These questions are the focus of the first part of this article: "AI as producer".In the second part, "AI as consumer", our analysis shifts to the questions of whether and to what extent the use of data fed into the system, for example to train the algorithms, may amount to copyright infringement, or may in certain circumstances be exempted under fair use, fair dealing or similar doctrines.In the third part we consider possible legal regimes for dealing with machine produced works including alternatives to copyright, such as a public domain scenario and a sui generis system.Finally, we provide our conclusions. Artificial intelligence as producerBy any rational measure AI systems can be said to produce works creatively.Moreover, they do so in an accurate, logical and independent way, with the final output often consisting of something unpredictable to the humans who programmed the AI platform in the first place (as well as the user(s) of the AI). 21 As with much content produced by humans, it is often the case that a key element of the creative process in AI-enabled works is based on randomness. 22So, is the final output generated by a machine protected by copyright-and, if so, who would be seen as its author (and owner)? This is not a new questionThe issue of whether computational creativity can be protected by copyright is not actually a new one, at least in the US.As far back as 1965, the US Register of Copyrights reported concerns to Congress about the rise of computer technology and wondered if and where the line between human authorship and computer production should be drawn. 23 More than a decade later, in 1978, the US National Commission on New Technological Uses of Copyrighted Works (CONTU Commission) reported on the issue and concluded that computers used to produce works were just "inert tools of creation".The CONTU Commission remarked: "[t]his discussion may have stemmed from a concern that computers either had or were likely to soon achieve powers that would enable them independently to create works that, although similar to other copyrightable works, would not or should not be copyrightable because they had no human author.The development of this capacity for 'artificial intelligence' has not yet come to pass, and, indeed, it has been suggested that such development is too speculative to consider at this time."(emphasis added) 24What the CONTU Commission considered too speculative in late 1970s became commonplace only a few years later.Advances in computing technology prompted the US Congress Office of Technology Assessment (OTA) to issue a report in 1986 arguing that CONTU's prior approach had been too simplistic and that computer programs were more than mere "inert tools of creation". 25Uncertainty still reigned, however, as in the same report OTA recognised that "we know that these works would be copyrightable if they were done by people, but we don't know what to do with them if they're done by computers". 26The developments in computational-and more recently artificial intelligence and machine learning-technologies in the subsequent decades have made the issues related to copyright in works created by machines more pressing.Academic interest in this topic has soared. 27Many of these academic scholars are interested in the question we now turn to: who can be an author?

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